BARBRI - Evidence

Question 1

What are three BARBRI categories of evidence?

Answer 1

1. Character evidence
2. Impeachment
3. Hearsay

Question 2

What is Character evidence?

Answer 2

Documentary evidence or testimony offered to prove that a person acted in conformity with a particular character trait

inadmissible if trying to prove propensity (with certain exceptions)

Question 3

Impeachment

Answer 3

Evidence that proves the witness is not credible for some reason or another

Question 4

Hearsay

Answer 4

Any statement made outside the court proceeding that is being offered to prove the content of the statement

Question 5

What are the steps in Barbri Approach to evidence?

Answer 5

1. Underline the cause of action - is it a civil or a criminal case?
2. Situate the proceeding and identify the parties and witnesses (label them: P, D, PW, DW)
3. Determine the purpose for which the evidence is being offered (substantively or to impeach)

Question 6

DEFINE: Hearsay

Answer 6

An out of court statement,

Other than one made by the declarant while testifying at the current trial or hearing

Offered to prove the truth of the matter asserted

Question 7

What is: OPRAH

Answer 7

Original Writing Rule

Privilege

Relevancy

Authentication

Hearsay

Question 8

DEFINE: Hearsay “Statement”

Answer 8

1. Oral or written assertion
2. Conduct intended as an assertion (can’t be made by animal or a machine)

Question 9

What are two different types of conduct? Define.

Answer 9

Assertive conduct is conduct intended as a substitute for words. When it is offered for its truth, such a statement can be hearsay.

Nonassertive conduct is not hearsay. It is conduct not intended as a statement, or assertion.

Question 10

What is Barbri Hearsay approach

Answer 10

1. Isolate the statement - What is the “statement”?
2. Who is the declaration? (Party or Witness)
   
   1. Party against that party by opponent think admissions
3. What is the purpose of evidence?
   
   1. Offered for its truth and NOT a hearsay exception = Hearsay
   2. Not offered for its truth OR a hearsay exemption = NOT Hearsay
      
      1. Impeachment
      2. Verbal Acts
      3. State of mind (offered to show notice, knowledge or motive)
      4. Exemptions (admissions (statements of party statement), prior statements of witnesses)
4. Look for hearsay exception

Question 11

What is adoptive admission by silence

Answer 11

A party hears and understand an accusation against him

The party is capable of denying it

A reasonable person would have denied it if it was untrue

Question 12

Admission by party opponent

Answer 12

State is by or attributable to a party

personal knowledge of facts NOT required

Statement need NOT have been against interest when made

Declarant need NOT be unavailable

Question 13

Declaration against interest

Answer 13

Declarant need NOT be a party

Personal knowledge of facts required

Statement must be against the interest when made

Declarant must be unavailable

Question 14

What are Hearsay Exceptions (top 10)

Answer 14

1. Present sense impression
2. Excited utterance
3. Present mental, emotional, or physical state
4. Statements for medical diagnosis or treatment
5. Past recollection recorded
6. Business records
7. Absence of a business record
8. Public records
9. Vital statistics
10. Absence of a public record

Question 15

Present Sence impression

Answer 15

A statement that describes or explains an event or condition, made while the declarant is perceiving the event or condition or immediately thereafter.

Question 16

Forms of Character evidence (3 forms)

Answer 16

Reputation Testimony (general rep in community)

Opinion testimony (someone who knows the person

Specific acts (specific instances of conduct)

Question 17

What is admissibility of Character evidence in CIVIL cases

Answer 17

Inadmissible to prove that the person acted in conformity with the trait

**ADMISSIBLE** when character is “in issue”
EXAMPLES:
Defamation (Character of plaintiff)
Child custody (parents)
Negligent entrustment (entrustee at issue)
Negligent hiring (character of employee)

Question 18

Impeachment: Bias

Answer 18

Bias is always material.

Question 19

Impeachment methods

Answer 19

1. Bias
2. Sensory defects
3. Prior inconsistent statements (PINS) - only to impeach - extrinsic evidence may be introduced if foundation is laid.
   
   1. If the PINS is sworn or falls within another hearsay exemption or exception, it is also admissible as substantive evidence.
4. Character

Question 20

Character

Answer 20

Reputation or opinion testimony

BAD ACTS (involving dishonesty) - May not be proven by extrinsic evidence 1. It is always a question 2. it is on cross examination 3. it inquires into prior acts of prior misconduct.
If he denies then atty has to accept the answer

Prior conviction - felony NOT involving dishonesty/false statement
10 year time limit
Court has discretion to exclude

Prior conviction - any crime involving dishonest/false statement - Automatically admissible, subject to 10-year limit